Citation NR: 9704747
Decision Date: 02/11/97 Archive Date: 02/19/97
DOCKET NO. 95-06 264 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to service connection for bilateral hearing loss.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
T. L. Douglas, Associate Counsel
INTRODUCTION
The appellant had active service from November 1944 to July
1946.
This matter is before the Board of Veterans’ Appeals (Board)
on appeal of an October 1994 rating determination by the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Louis, Missouri, which denied service connection for
hearing loss.
In July 1946, the RO denied service connection for bilateral
ear disability from scarlet fever. The RO notified the
veteran of that determination by letter dated August 5, 1946;
the veteran did not appeal. The RO did not necessarily
address the issue of service connection for hearing loss in
that decision and the Board finds that there has been no
prior final decision with respect to hearing loss.
The appellant has raised a claim for service connection for
chronic otitis media. This is referred to the RO for further
action.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that his current hearing loss is a
residual of scarlet fever contracted during active duty and
should be service-connected.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the appellant's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the appellant has not met the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that his claim for
service connection for bilateral hearing loss is well
grounded.
FINDING OF FACT
The appellant has not provided any competent medical evidence
demonstrating a current diagnosis of a hearing loss
disability, or any competent medical evidence relating a
current disability to an injury or disease incurred during
active service.
CONCLUSION OF LAW
The appellant has not submitted evidence of a well-grounded
claim for service connection for bilateral hearing loss. 38
U.S.C.A. § 5107(a) (West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
Background
The appellant served in the United States Navy during World
War II. Service medical records indicate that he was
hospitalized in January 1945 and treated for scarlet fever
and acute otitis media. In February 1945, the appellant was
released to active duty. A service discharge examination in
July 1946 records normal bilateral hearing and states that
the appellant is physically qualified for separation.
In July 1946, the VA denied the appellant’s claim for an ear
disability from scarlet fever because it was not shown on his
last physical examination.
In September 1994, the appellant submitted an informal claim
for service connection for hearing loss disability. The RO
requested the appellant to submit or identify medical
evidence showing treatment since his separation from active
service. In October 1994, the appellant responded on the
RO’s notification letter that he had no such records and that
persons with knowledge of this information were deceased. In
October 1994, the RO denied the appellant’s claim for
bilateral hearing loss.
The appellant, in his February 1995 notice of disagreement
(NOD), reiterates his in-service treatment for scarlet fever
and offers a letter from the United States Navy written in
response to a congressional request on his behalf to relate
the history of scarlet fever during World War II. Also
included is a partial Summary of Navy Streptococcal Control
Program. This evidence does not show that the veteran has
either a current hearing loss disability or any other
residual disability from scarlet fever.
Analysis
Service connection may be granted for a disability resulting
from personal injury suffered or disease contracted in line
of duty or for aggravation of preexisting injury suffered or
disease contracted in line of duty. 38 U.S.C.A. § 1110 (West
1991); 38 C.F.R. § 3.303 (1995).
Pursuant to 38 U.S.C.A. § 5107(a), a person who submits a
claim for benefits under a law administered by the Secretary
shall have the burden of submitting evidence sufficient to
justify a belief by a fair and impartial individual that the
claim is well grounded. The United States Court of Veterans
Appeals (Court) has held that a well-grounded claim is "a
plausible claim, one which is meritorious on its own or
capable of substantiation. Such a claim need not be
conclusive but only possible to satisfy the initial burden of
§ [5107(a)]." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990).
The Court has also held that although a claim need not be
conclusive, the statute provides that it must be accompanied
by evidence that justifies a "belief by a fair and impartial
individual" that the claim is plausible. Tirpak v.
Derwinski, 2 Vet.App. 609, 610 (1992). The Court has held
that "where the determinative issue involves medical
causation or a medical diagnosis, competent medical evidence
to the effect that the claim is 'plausible' or 'possible' is
required." Grottveit v. Brown, 5 Vet.App. 91, 93 (1993)
(citing Murphy, at 81). The Court has also held that
"Congress specifically limits entitlement for service-
connected disease or injury to cases where such incidents
have resulted in a disability. In the absence of proof of a
present disability there can be no valid claim." Brammer v.
Brown, 3 Vet.App. 223, 225 (1992); see also
Rabideau v. Derwinski, 2 Vet.App. 141, 143-44 (1992). Lay
assertions of medical causation cannot constitute evidence to
render a claim well grounded under 38 U.S.C.A. § 5107(a)
(West 1991); if no cognizable evidence is submitted to
support a claim, the claim cannot be well grounded. See
Grottveit, 5 Vet.App. at 93 (Court held that lay assertions
of medical causation cannot constitute evidence to render a
claim well grounded); see also Espiritu v. Derwinski,
2 Vet.App. 492, 494 (1992) (Court held that a witness must be
competent in order for his statements or testimony to be
probative as to the facts under consideration).
In Caluza v. Brown, 7 Vet.App. 498, 506 (1995) the Court
reaffirmed these holdings, stating in order for a claim to be
well grounded there must be competent evidence of current
disability (a medical diagnosis), of incurrence or
aggravation of a disease or injury in service (lay or medical
evidence), and of a nexus between the in-service injury or
disease and the current disability (medical evidence).
In this case, the appellant contends that he has a current
loss of hearing which is the result of scarlet fever that he
contracted during active duty. The service medical records
show treatment for scarlet fever in January 1945 and, later
during the same period of hospitalization, for acute otitis
media in February 1945. These treatment records do not
contain a diagnosis of hearing loss. In addition, the
appellant’s service discharge examination does not show a
hearing loss disability at separation. In fact, the
appellant has not submitted or identified any competent
medical evidence demonstrating a current diagnosis of a
hearing loss disability, or any competent medical evidence
relating a current disability to an injury or disease
incurred during active service. He responded to an RO
request for information that he did not have any record of
treatment for this disability since his discharge and that
persons with knowledge of treatment were deceased. In this
appeal, the only evidence relating a current hearing loss
disability are the appellant’s own statements.
Based on the evidence currently of record, the Board finds no
competent medical evidence relating a post-service medical
diagnosis to any disease or injury incurred during active
service. While the veteran is competent to testify as to
symptoms he experiences, he is not competent to render a
current medical diagnosis or provide an opinion on a prior
diagnosis because this requires specialized medical
knowledge. Grottveit, 5 Vet.App. at 93; Espiritu, 2 Vet.App.
at 494. Consequently, the Board concludes that the veteran
has not submitted evidence of a well-grounded claim for
service connection for bilateral hearing loss. 38 U.S.C.A.
§ 5107(a).
The Board has considered the holdings of the Court in
Robinette v. Brown, 8 Vet.App. 69 (1995) and Epps v. Brown, 9
Vet.App. 341 (1996). The Board finds that the appellant was
provided with adequate notice of the basis for the denial of
his claim, and of the evidence required to support the claim,
in the October 1994 rating decision and in the February 1995
statement of the case.
ORDER
Entitlement to service connection for bilateral hearing loss
is denied.
D. C. SPICKLER
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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